Opinion
110882
07-23-2020
The PEOPLE of the State of New York, Respondent, v. Robert BURT, Appellant.
G. Scott Walling, Slingerlands, for appellant. Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), for respondent.
G. Scott Walling, Slingerlands, for appellant.
Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), for respondent.
Before: Egan Jr., J.P., Mulvey, Devine, Aarons and Colangelo, JJ.
MEMORANDUM AND ORDER
Appeal from a judgment of the County Court of Schenectady County (Sypniewski, J.), rendered August 10, 2018, convicting defendant upon his plea of guilty of the crime of attempted criminal sale of a controlled substance in the third degree.
In satisfaction of a four-count indictment, defendant pleaded guilty to the reduced charge of attempted criminal sale of a controlled substance in the third degree and was required to waive the right to appeal. County Court sentenced defendant to 3½ years in prison, to be followed by two years of postrelease supervision. Defendant appeals.
Appellate counsel seeks to be relieved of his assignment of representing defendant on the ground that there are no nonfrivolous issues that can be raised on appeal. Upon our review of the record and counsel's brief, we disagree. We find that there is at least one issue of arguable merit with respect to the validity of defendant's appeal waiver that may potentially impact other issues that may be raised, such as the severity of the sentence (see People v. Thomas, 34 N.Y.3d 545, 565–566, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019] ; People v. Barrales, 179 A.D.3d 1313, 1314–1315, 118 N.Y.S.3d 263 [2020] ). Accordingly, without passing judgment on the ultimate merit of this issue, we grant counsel's application for leave to withdraw and assign new counsel to address this issue and any others that the record may disclose (see People v. Beaty, 22 N.Y.3d 490, 492–493, 982 N.Y.S.2d 820, 5 N.E.3d 983 [2014] ; People v. Stokes, 95 N.Y.2d 633, 638–639, 722 N.Y.S.2d 217, 744 N.E.2d 1153 [2001] ; see generally People v. Cruwys, 113 A.D.2d 979, 980, 493 N.Y.S.2d 653 [1985], lv denied 67 N.Y.2d 650, 499 N.Y.S.2d 1046, 490 N.E.2d 562 [1986] ).
Egan Jr., J.P., Mulvey, Devine, Aarons and Colangelo, JJ., concur.
ORDERED that the decision is withheld, application to be relieved of assignment granted and new counsel to be assigned.